Federal Judge Expresses Concern About Death Penalty

By ADAM LIPTAK

A federal judge in Boston voiced alarm today that imposing the death penalty "will inevitably result in the execution of innocent people." But he declined to rule that that the death penalty is unconstitutional.

"In the past decade," the judge, Mark L. Wolf, wrote, "substantial evidence has emerged to demonstrate that innocent individuals are sentenced to death, and undoubtedly executed, much more often that previously understood."

He cited the exonerations of more than 100 people on death row based on DNA and other evidence.

"The day may come," Judge Wolf continued, "when a court properly can and should declare the ultimate sanction to be unconstitutional in all cases. However, that day has not yet come."

That means the case against Gary Lee Sampson, including the capital charges, will now to trial in September. Mr. Sampson has acknowledged responsibility for three murders. In the space of a few days in 2001, he killed three men who had picked him up hitchhiking.

Judge Wolf, a former federal prosecutor and Justice Department official, was appointed to the bench by President Ronald Reagan. He appeared critical of recent changes in the Justice Department's practices in seeking the death penalty.

"Juries have recently been regularly disagreeing with the attorney general's contention that the death penalty is justified in the most egregious federal cases involving murder," he wrote.

In 16 of the last 17 federal capital prosecutions, Judge Wolf wrote, juries rejected the death penalty. One of Mr. Sampson's lawyers, David A. Ruhnke, said Judge Wolf's numbers are outdated. He said the count now stands at 19 acquittals or life verdicts in the last 20 cases.

The most recent acquittals came earlier this month in Puerto Rico. Like Massachusetts, Puerto Rico does not have the death penalty. Thirty-eight states do.

"These recent verdicts," Judge Wolf wrote, "raise the question of whether the Department of Justice is properly employing its stated standards in deciding to seek the death penalty."

The acquittals and life sentences are evidence, Judge Wolf continued, of an evolving societal consensus against the death penalty that courts may take account of in deciding whether capital punishment violates the Eighth Amendment's prohibition on cruel and unusual punishment.

"If juries continue to reject the death penalty in the most egregious federal cases," he wrote, "the courts will have significant objective evidence that the ultimate sanction is not compatible with contemporary standards of decency."

He also noted that the department's policies about whether to take into account local opposition to the death penalty have changed. Until 2001, the policies said that the absence of a local death penalty did not by itself justify a federal capital prosecution. That has changed.

"It appears," Judge Wolf wrote, "that the fact that a state's laws do not authorize capital punishment may now alone be deemed sufficient to justify a federal death penalty prosecution."

A Justice Department spokeswoman did not immediately return calls seeking comment.

Only one federal jury has sentenced a defendant to death in a jurisdiction that does not have its own death penalty since the federal death penalty was reinstated in 1988. That was in Michigan in 2002.

The only other judge to hear a federal death penalty prosecution in Massachusetts in recent years later described what he had learned in The Boston Globe.

"The experience," Judge Michael Ponsor wrote, "left me with one unavoidable conclusion: that a legal regime relying on the death penalty will inevitably execute innocent people � not too often, one hopes, but undoubtedly sometimes."